This latest bulletin is about trials and trial procedure.
As described in our February 2008 bulletin “Overview of a Civil Action”, an action proceeds through a number of stages before it goes to trial. The parties begin by exchanging pleadings and affidavits of documents and then conduct examinations for discovery. At any point, a party may bring a motion before a judge or a master to deal with an issue in the action, including motions arising from the discovery process. Once all preliminary steps have been completed, the action can proceed to trial.
Recent statistics indicate that over 90% of cases are disposed of without a trial. Many of these cases settle, as a result of negotiations between the parties as represented by their respective counsel or as a result of encouragement from a judge at a pre-trial conference. For the 10% of cases that are not disposed of prior to trial, the trial is the stage where evidence is presented to the trier of fact (judge or jury) and the issues in dispute are determined.
Judge or Jury?
Most civil actions are heard by a judge alone; jury trials for civil actions are rare in Ontario. Certain types of claims must be tried by a judge alone: these claims are listed at section 108(2) of the Courts of Justice Act or are identified in other statutes. Otherwise, parties have the choice of whether to have some or all of the issues determined by a jury. A party who wishes to proceed before a jury will deliver a jury notice at any time before the close of pleadings.
Juries in civil actions differ from juries in criminal actions in two important ways. First, civil juries are composed of six individuals, not twelve. Second, a unanimous verdict is not required – it is sufficient if five of the six jurors agree with the verdict.
Setting down for trial
After the close of pleadings, any party may set the action down for trial by serving a trial record on every other party. The trial record includes a copy of the pleadings and orders relating to the trial.
After the action is set down for trial, the court’s registrar will place the action on the appropriate trial list. When an action is placed on a trial list, all parties are deemed to be ready for trial and the trial shall proceed when the action is reached on the list.
Pre-trial conferences are held in some, but not all, actions. A pre-trial conference can be a helpful tool in promoting settlement or preparing a matter for trial. Pre-trial conferences are required in actions under the Simplified Procedure (Rule 76) and the Toronto Civil Case Management Pilot Project (Rule 78). In other cases, any party can request a pre-trial conference or a judge may order that one take place.
At a pre-trial conference, a judge or officer of the court will meet with the parties and their counsel. Before the pre-trial, the parties will provide the judge or officer with a summary of the facts and issues in the action. At the pre-trial the judge or officer may offer his or her opinion on the merits of each party’s case in an attempt to encourage settlement. The judge who presides over the pretrial generally does not preside over the trial. The discussions at a pre-trial are “without prejudice”, which means that they cannot be used against any party at trial.
If the parties are unable to achieve settlement at a pre-trial, they may be successful in narrowing or simplifying the issues in the action. Other trial management issues are often dealt with at a pre-trial, including the length of trial and order and availability of experts and witnesses.
The Trial: Preliminary Matters
At the beginning of a trial, a judge may deal with preliminary matters before counsel make their opening statements.
At the request of a party, a judge will often make an order to exclude witnesses from the courtroom. This means that until a witness has testified, he or she is not permitted to observe the proceedings or speak with anyone about evidence given in the courtroom in his or her absence. There are exceptions to this rule: parties who are instructing a lawyer are permitted to stay, and an exception is usually made for expert witnesses.
All court hearings, save limited exceptions, are open to the public. Only on very rare occasions will judges order a publication ban prohibiting the publication of evidence outside of the courtroom. However, if a particular document filed in a court proceeding is of a confidential nature, the judge may order the document sealed and it will not form part of the public record.
The Trial: Evidence and Procedure
Counsel begin the trial by making opening statements. In an opening statement, counsel will provide a general review of the evidence and an overview of the issues. Plaintiff’s counsel makes the first opening statement. Defendant’s counsel can choose to make an opening statement immediately following the plaintiff’s opening, or upon the conclusion of the plaintiff’s case and before presenting the defendant’s case.
Following the opening statements, the evidence portion of the trial begins. Evidence is usually presented to the judge or jury through the testimony of witnesses who have sworn an oath or made a solemn affirmation to tell the truth.
Witnesses who may not attend the trial voluntarily can be compelled to attend by being served with a summons to witness (which was formerly known as a subpoena). The summons requires the witness to attend at the time and place stated in the summons and may also require that the witness bring and produce at the trial any documents relating to the matters at issue in the action.
The witness is first examined in chief by counsel calling the witness. In the examination in chief, counsel asks the witness open ended questions to draw out a witness’ evidence on a given topic. The witness is then cross-examined by opposing counsel.
The goal of cross examination is very different from that of examination in chief. The Honourable Mr. Justice John Sopinka identified three purposes for cross-examination: (1) to obtain helpful admissions or evidence; (2) to contradict or impeach a witness; or (3) to create an impression or atmosphere for the judge or jury. To these ends, opposing counsel will ask leading questions, which are intended to direct the mind of the witness to the answer.
Following cross-examination, a witness may be reexamined by counsel. On re-examination, questions must be limited to new matters that were raised in cross-examination. It is not an opportunity for the witness to repeat previous testimony given in chief or to raise entirely new matters.
Evidence given by expert witnesses is subject to special requirements. These requirements are discussed in our August 2008 bulletin “Expert Evidence”.
Evidence can also in some circumstances be presented to the court by way of affidavit or by “reading in” portions of a transcript from an examination for discovery. For example, where a witness is gravely ill and cannot attend court, judges may permit evidence to be given by a witness in the form of an affidavit. In addition, evidence given on an examination for discovery can be used at trial as part of a party’s own case against an adverse party. Counsel may “read in” at trial portions of the transcript from the examination for discovery of the adverse party. Evidence from an examination for discovery may also be used to impeach a witness who has made a statement at trial that is inconsistent with his or her previous testimony on discovery.
After each side has had the opportunity to examine and cross-examine all of the witnesses, and present and challenge all of the evidence, the evidence portion of the trial comes to a close.
The Trial: Conclusion
Closing arguments of counsel are the final act of the trial. The order of closing arguments can vary. In a judge-alone trial, the plaintiff is generally called upon first. In a jury trial, the plaintiff’s counsel addresses the jury last, unless the defendant has called no evidence, in which case the defendant’s counsel addresses the jury last.
In a closing argument, counsel must demonstrate to the judge or jury why the evidence supports a verdict in his or her client’s favour. Counsel will review the evidence of witnesses in a way that supports the argument being made. In a jury trial, counsel will focus on the evidence and provide only limited direction on the law to be applied. The special role of the judge is to give instructions to the jury on how the law should be applied. In a judge-alone trial, a judge may ask counsel to make written submissions instead of, or in support of, oral argument. Written submissions generally include references to and copies of the relevant legal authorities.
Once closing arguments are finished, the waiting game begins. Juries will enter deliberations immediately and return to the court when they have a verdict. Judges may provide a decision immediately following the close of trial or may, depending on the length of the trial, the amount of evidence involved, and the complexity of the issues, reserve their judgment and release it to the parties at a later date.
While a trial is the most dramatic stage of a proceeding, all of the decisions made from the outset of the proceeding have a potential impact on the trial. Parties should therefore consult with legal counsel at an early stage for guidance and advice with respect to those decisions in order to present the best possible case at trial.